The neurological determination of death: What does it really mean?

Issues in Law and Medicine

Volumn 23, Issue 2, 2007, Pages 119-140

  Joffe, Ari Robin ^a  

^a STOLLERY CHILDREN S HOSPITAL   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

BRAIN DEATH; BRAIN STEM; CANADA; DEATH; HUMAN; INFORMATION PROCESSING; LEGAL ASPECT; NEUROLOGIC EXAMINATION; PATHOLOGY; REVIEW; TRANSPLANTATION;

BRAIN DEATH; BRAIN STEM; CANADA; DATA COLLECTION; DEATH; HUMANS; NEUROLOGIC EXAMINATION; TISSUE AND ORGAN HARVESTING;

EID: 36949021790     PISSN: 87568160     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (112)

1. S.D. Shemie et al., Severe Brain Injury to Neurological Determination of Death: Canadian Forum Recommendations, 174 C.M.A.J. S1-S12 (2006).
2. Id. at S1, S9 (emphasis added).
3. See generally J .L. Bernat et al., On the Definition and Criterion of Death, 94 ANNALS INTERNAL MED. 389-94 (1981); LAW REFORM COMMISSION or CANADA, REPORT: CRITERIA FOR THE DETERMINATION OF DEATH (Ottawa, Canada: Minister of Supply and Services Canada 1981) (hereinafter "LAW REFORM COMMISSION") ; PRESIDENT'S COMMISSION FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE AND BIOMEDICAL AND BEHAVIORAL RESEARCH, DEFINING DEATH: MEDICAL, LEGAL AND ETHICAL ISSUES IN THE DETERMINATION OF DEATH 32-38 (Washington, D.C., U.S. Government Printing Office 1981) (hereinafter "PRESIDENT'S COMMISSION"); S.J. Youngner
4. PRESIDENT'S COMMISSION, supra note 3, at 32-38.
5. LAW REFORM COMMISSION, supra note 3, at 25, 29-32.
6. See discussions in PRESIDENT'S COMMISSION, supra note 3; LAW REFORM COMMISSION, supra note 3.
7. See discussions in D.A. Shewmon, Chronic "Brain Death": Meta-analysis and Conceptual Consequences, 51 NEUROLOGY 1538-45 (1998); D.A. Shewmon, The Brain and Somatic Integration: Insights Into the Standard Biological Rationale for Equating Brain Death With Death, 26 J. MED. & PHIL. 457-78 (2001); M. Potts, A Requiem for Whole Brain Death: A Response to D. Alan Shewmon's "The Brain and Somatic Integration," 26 J. MED. & PHIL. 479-91 (2001); D.A. Shewmon, Hypothesis: Spinal Shock and "Brain Death": Somatic Pathophysiological Equivalence and Implications for the Integrative-Unity Rationale, 37 SPINAL CORD 313-24 (1999).
8. See Shewmon, Chronic "Brain Death," supra note 7.
9. See id.; M. Potts, supra note 7; D. Marquis, Abortion and the Beginning and End of Human Life, 34 J. L., MED. & ETHICS 21 (2006); J. McMahan, An Alternative to Brain Death, 34 J. L., MED. & ETHICS 46 (2006); J. Seifert, is 'Brain Death' Actually Death? 76 MONIST 175-202 (1993); R.M. Taylor. Reexamin ing the Definition and Criteria of Death, 17 SEMINARS NEUROLOGY 267, 268 (1997).
10. See D. J. Powner & I. M. Bernstein, Extended Somatic Support for Pregnant Women After Brain Death, 31 CRITICAL CARE MED. 1241-49 (2003); A. Lane et al., Maternal Brain Death: Medical, Ethical and Legal Issues, 30 INTENSIVE CARE MED. 1484-86 (2004); I. Y. Hussein et al., Prolongation of Pregnancy in a Woman Who Sustained Brain Death at 26 Weeks of Gestation, 113 BRIT. J. OBSTETRICS & GYNECOLOGY 120-22 (2006).
11. See Shewmon, Chronic & Brain Death," supra note 7. See also S. Repertinger et al, Long Survival Following Bacterial Meningitis-Associated Brain Destruction, 21 J. CHILD NEUROLOGY 591-95 (2006).
12. McMahan, supra note 9, at 46. See also J. L. Bernat, The Biophilosophical Basis of Whole-Brain Death, 19 SOCIAL PHIL. &r POL'Y 324-42 (2002). In this article Bernat expands on his definition of death, "the functioning of the organism as a whole." id. at 328. He lists as crucial such things as "a coordination and correspondence of structure and function that suggests purpose," "dynamics, or signs of life, such as metabolism, growth, and locomotion," "integration, a process deriving from the mutual interaction of its component parts," and "coordination, a regulatory process maintaining the constancy of the order of integration." id. at 332-33. He also states that a living organism "has emergent functions that are not possessed by any of its component organ subunits . . . [and] that reflect the coherent unity of the organism." Id. at 333. To distinguish the life of an organism from the life of its component parts, he lists a need for "completion, that the organism is not part of a greater whole but is intrinsically complete," "indivisibility, that no organism can be divided into two or more living organisms," "self-reference, that the organism is the end in itself and does not derive its meaning from its component parts, all of which are unified by a founding principle within the organism itself," and "identity, that the living organism remains one and the same throughout life." Id. at 333-34. By the ongoing integrative unity arguments and prolonged survivals in BD noted by others, see supra notes 9 and 10, all of these are present in BD. Bernat goes on to suggest that what counts is only the "critical system . . . the irreplaceable, indispensable, complex, structural-functional control system that maintains the health and life of the organism, without which the organism no longer can function as a whole . . . [and without which the organism loses] its anti-entropic capacity, and entropy (disorder) inevitably increases." Id. at 334. Thus, he theorizes that "the brain is the critical system of the organism without which the organism cannot function as a whole." Id. at 335. To support this theory he suggests that "the other organs of the body maintain the health and proper operation of the critical system. Thus, the heart pumps blood to perfuse the brain, the lungs provide intake of oxygen and output of carbon dioxide for optimal neuronal metabolic demands . . . ." Id. at 335. But this argument does not seem to be defensible. What ongoing integrative unity of the organism in BD shows is that the brain modulates the organism's integration, but is not critical for this functioning as a whole to continue. Bernat runs into difficulty when he gives the specifics for this critical system argument. For example, the only emergent functions he can list are "conscious awareness," id. at 335, 341, or "consciousness," id. at 335, 341, or "wakefulness," id. at 337, which in other parts of the article he insists are not sufficient reasons for BD being death (e.g., he refutes persistent vegetative state and brainstem death). Moreover, he lists the distributed functions of the brain as "conscious awareness," "breathing and blood pressure regulation," and "[the ability to] regulate homeostasis located in the hypothalamus." Id. at 336. These are clearly not all lost in the state of BD, with frequent ongoing hypothalamic function and blood pressure regulation. Although 1 agree that the arguments "enjoy a broad intuitive appeal even among people who have not rigorously scrutinized its conceptual basis," id. at 341, this is exactly the point. When the arguments are examined in detail, they are not tenable.
13. See Shewmon, Hypothesis, supra note 7, McMahan, supra note 9, at 46; Youngner & Bartlett, supra note 3, at 254.
14. See D. DeGrazia, Identity, Kitting, and the Boundaries of Our Existence, 31 PHIL. & PUBLIC AFFAIRS 413-42 (2003) (hereinafter DeGrazia I); D. DeGrazia, Are We Essentially Persons? Olson, Baker, and a Reply, 33 PHIL. FORUM 101-20 (2002) (hereinafter DeGrazia II).
15. See DeGrazia I and DeGrazia II, supra note 14; M. B. Green & D. Wikler, Brain Death and Personal Identity, 9 PHIL. & PUBLIC AFFAIRS 105-33 (1980).
16. DeCrazia I, supra note 14, at 418.
17. See discussion in DeGrazia I and II, supra note 14.
18. See K. G. Karakatsanis & J. N. Tsanakas, A Critique of the Concept of "Brain Death," 18 ISSUES IN LAW &r MED. 138-40 (2002); see generally Seifert, supra note 9.
19. See J. M DuBois, Non-Heart-Beating Organ Donation: A Defense of the Required Determination of Death, 27 J. L., MED. & ETHICS 128,131 (1999); G. Khushf, Owning Up to Our Agendas: On the Role and Limits of Science in Debates About Embryos and Brain Death, 34 J. L., MED. & ETHICS 66,69; Seifert, supra note 9; D. A. Shewmon, Recovery From "Brain Death": A Neurologist's Apologia, 64 LINAC RE Q. 30-96 (1997).
20. See Bernat et al., supra note 3, at 391; Seifert, supra note 9; R.D. Truog, Is It Time to Abandon Brain Death? 27 HASTINGS CENTER REP. 29-37 (1997).
21. P. Byrne et al., Use of Anencephalic Newborns as Organ Donors, 10 PAEDIATRIC CHILD HEALTH 335-37 (2005) (prepared for The Canadian Pediatric Society).
22. J. L. Bernat, The Whole-Brain Concept of Death Remains Optimum Public Policy, 34 J. L., MED. & ETHICS 38 (2006).
23. See Green & Wikler, supra note 15, at 106.
24. Id. at. 117.
25. See F. M. Kamm, Brain Death and Spontaneous Breathing, 30 PHIL. & PUBLIC AFFAIRS 306 (2002).
26. Id. at 306.
27. Id. at 304.
28. Id. at 317.
29. See also Green & Wikler, supra note 15, at 113; Marquis, supra note 9, at 21. An anonymous reviewer suggested that "the notion of 'artificial integration' or 'non-spontaneous integration' seems an oxymoron." This does not, however, detract from the main argument here. If "artificial integration" counts when it is due to exogenous insulin, or dialysis, then so should ventilation of the patient with high spinal cord injury, and ventilation of a brain dead patient. Conversely, if there is no such thing as "artificial integration," then, as noted above (see J. McMahan, supra note 9), this suggests there is not a central integrator; rather, the patient might be alive through "decentralized interaction, in which these parts achieve coordination by sending, receiving, and processing signals among themselves." Id.
30. Shemie et al., supra note 1, at S1.
31. S. D. Shemie, Brain Arrest to Neurological Determination of Death to Organ Utilization: The Evolution of Hospital-Based Organ Donation Strategies in Canada, 53 CAN. J. ANESTHESIOLOGY 747 (2006).
32. Report of the Medical Consultants on the Diagnosis of Death to the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research: Guidelines for the Determination of Death, 246 JAMA 2184-86 (1981).
33. See generally id.; and A. E. WALKER, CEREBRAL DEATH (1985).
34. See Bernat, supra note 22, at 40.
35. C. G. Coimbra, Implications of Ischemic Penumbra for the Diagnosis of Brain Death, 32 BRAZIL J. MED. BIOLOGICAL RES. 1479-87 (1999).
36. See cases presented by the following: S. Ashwal et al., Radionuclide Bolus Angiography: A Technique for Verification of Brain Death in Infants and Children, 91 J. PEDIATRICS 722-28 (1977); C. F. Bolton et al., EEG and Brain Life, 1976 LANCET 7958; J. M. Chandler & R. J. Brilli, Brainstem Encephalitis Imitating Brain Death, 19 CRITICAL CARE MED. 977-79 (1991); J. B. Green & A. Lauber, Return of EEC Activity After Electrocerehral Silence: Two Case Reports, 35 J. NEUROLOGY & NEUROSURGICAL PSYCHIATRY, 103-07 (1972); T. Kato et al., Assessment of Brain Death in Children by Means of P-31 MR Spectroscopy: Preliminary Note, 179 RADIOLOGY 95-99 (1991); M. H. Kohrman & B. S. Spivack, Brain Death in Infants: Sensitivity and Specificity of Current Criteria, 6 PEDIATRIC NEUROLOGY 47-50 (1990); K. Okamoto & T. Sugimoto, Return of Spontaneous Respiration in an Infant Who Fulfilled Current Criteria to Determine Brain Death, 96 PEDIATRICS 518-20 (1995); J. R. Thompson et al., Comparison of Cerebral Blood Flow Measurements by Xenon Computed Tomography and Dynamic Brain Scintigraphy in Clinically Brain Dead Children, 369 ACTA RADIOLOGICA SUPPLEMENTUM 675-79 (1986). An anonymous reviewer suggested that these cases "are not about 'reversible BD', but are examples of the fallibility of the clinical diagnostic criteria for BD." The suggestion here is that these patients could not have had death of the brain, because, by definition, death is irreversible. This may be true; however, it does not change the fact that as currently diagnosed the state of BD may not be irreversible.
37. M. M. Grigg et al., Electroencephalographic Activity After Brain Death, 44 ARCHIVES NEUROLOGY 948-54 (1987); A. Paolin et al., Reliability in Diagnosis of Brain Death, 21 INTENSIVE CARE MED. 657-62 (1995).
38. E. Facco et al., Role of Short Latency Evoked Potentials in the Diagnosis of Brain Death, 113 CLINICAL NEUROPHYSIOLOGY 1855-66 (2002); M. Ruiz-Garcia et al., Brain Death in Children: Clinical, Neurophysiological and Radioisotopic Angiography Findings in 125 Patients, 16 CHILD'S NERVOUS SYSTEM 40-46 (2000).
39. W. M. Flowers & B. R. Patel, Persistence of Cerebral Blood Flow After Brain Death, 93 S. MED. J. 364-70 (2000); R. W. Kurtek et al., Tc-99m Hexamethylpropylene Amine Oxime Scintigraphy in the Diagnosis of Brain Death and Its Implications for the Harvesting of Organs Used for Transplantation, 25 CLINICAL NUCLEAR MED. 7-10 (2000); and N. C. Singh et al., Usefulness of (Tc99m) HM-PAO Scan in Supporting Clinical Brain Death in Children: Uncoupling Flow and Function, 5 CLINICAL INTENSIVE CARE 71-74 (1994).
40. See P. M. Black, Brain Death (First and second parts), 299 NEW ENG. J. MED. 338-44, 393-401 (1978); B. Drake et al., Determination of Cerebral Death in the Pediatric Intensive Care Unit, 78 PEDIATRICS 107-12 (1986); J. C. Fackler et al., Age-Specific Characteristics of Brain Death in Children, 142 AM. J. DISEASES CHILDREN 999-1003 (1988); A. Mohandas & S. N. Chou, Brain Death: A Clinical and Pathological Study, 35 J. NEUROSURGERY 211-18 (1971); R. Schroder, Later Changes in Brain Death: Signs of Partial Recirculation, 62 ACTA NEUROPATHOLOGY (Berl.). 15-23 (1983); and A.E. Walker et al., The Neuropathological Findings in Irreversible Coma: A Critique of the "Respirator Brain," 34 J. NEUROPATHOLOGY & EXPERIMENTAL NEUROLOGY 295-323 (1975).
41. See Drake, supra note 40; D. Staworn et al., Brain Death in Pediatric Intensive Care Unit Patients: incidence, Primary Diagnosis, and the Clinical Occurrence of Turner's Triad, 22 CRITICAL CARE MED. 1301-05 (1994); A. Halevy & B. Brody, Brain Death: Reconciling Definitions, Criteria, and Tests, 1 19 ANNALS INTERNAL MED. 519-25 (1993).
42. See Shemie et al., supra note 1, at S2 (gives temperature and PaC02 criteria), S3 (gives statement of no fixed time interval, and ancillary test of cerebral blood flow), S4 (gives oculocephalic reflex); and Shemie, supra note 31, at 748 (NDD is "fundamentally a bedside evaluation documenting the absence of clinical brainstem function").
43. Sec R. Vardis & M. M. Pollack. Increased Apnea Threshold in a Pediatric Patient With Suspected Brain Death, 26 CRITICAL CARL MED. 1917-19 (1998); R. J. Brilli & D. Bigos, Apnea Threshold and Pediatric Brain Death, 28 CRITICAL CARE MED. 1257 (2000).
44. K. J. Donohoe et al., Procedure Guideline for Brain Death Scintigraphy, 44 J. NUCLEAR MED. 846-51 (2003) (prepared for The Society of Nuclear Medicine).
45. I. H. Kerridge el al., Death, Dying and Donation: Organ Transplantation and the Diagnosis of Death, 28 J. MED. ETHICS 89-94 (2002); see generally C. PALLIS & D. H. HARLEY, ABC OF BRAINSTEM DEATH, 2nd ed. (BMJ Publishing Group, London, U.K. 1996).
46. DeGrazia I, supra note 14, at 439.
47. Id., see also discussion in DeGrazia II, supra note 14, 101-20; Green & Wikler, supra note 15. at 128.
48. J. L. Bernat, A Defense of the Whole Brain Concept of Death, HASTINGS CENTER REP., Mar.-Apr., 1998, at 14; J. L. Bernat, How Much of the Brain Must Die in Brain Death? J. CLINICAL ETHICS 21-28 (1992); J. L. Bernat, supra note 22, at 38.
49. Id. at 17, 22.
50. See P A. Byrne & R. G. Nilges, The Brain Stem in Brain Death: A Critical Review, 9 ISSUES IN LAW & MED. 3 (1993).
51. This point has been discussed in the following: Youngner & Bartleu, supra note 3, at 257; R. D. Truog & V M. Robinson, Role of Brain Death and the Dead-Donor Rule in the Ethics of Organ Transplantation, 31 CRITICAL CARE MED. 2392 (2003); R. M. Veatch, Brain Death and Slippery Slopes, 3 J. CLINICAL ETHICS 181-87 (1992); N. Zamperetti et al., Irreversible Apnoeic Coma 35 Years Later: Towards a More Rigorous Definition of Brain Death? 30 INTENSIVE CARE MED. 1717 (2004). It was recognized even in 1979: "there is nothing to prevent any of the characteristic functions of the component brain parts from being declared 'peripheral.' For it is certain that no one of them can be declared to be that function that alone makes the whole person live." P. A. Byrne et al., Brain Death: An Opposing Viewpoint, 242 JAMA 1989 (1979).
52. Shemie, supra note 1, at S3, S5.
53. McMahan, supra note 9, at 46.
54. Shemie, supra note 1, at S2.
55. Id. at S4.
56. Id. at S1.
57. See M.D.D. Bell et al., Brainstem Death Testing in the UK: Time for Reappraisal? 92 BRIT. J. ANAESTHESIOLOGY 633-40 (2004); M.Y. Chang et al., Variability in Brain Death Declaration Practices in Pediatric Head Trauma Patients, 39 PEDIATRIC NEUROSURGERY 7-9 (2003); D. J. Powner et al., Variability Among Hospital Policies for Determining Brain Death in Adults, 32 CRITICAL CARE MED. 1284-88 (2004); E. F. M. Wijdicks, Brain Death Worldwide: Accepted Fact But No Global Consensus in Diagnostic Criteria, 58 NEUROLOGY 20-25 (2002).
58. See U. Kafrawy & D. Sterwart, An Evaluation of Brainstem Death Documentation: The Importance of Full Documentation, 14 PEDIATRIC ANESTHESIA 584-88 (2004); A. T. Keogh & T. M. Akhtar, Diagnosing Brain Death: The Importance of Documenting Clinical Test Results, 54 ANAESTHESIA 81-85 (1999); M. Y. Wang et al., Brain Death Documentation: Analysis and Issues, 51 NEUROSURGERY 731-35 (2002).
59. See Chandler & Brilli, supra note 36; Y. Friedman et al., Simulation of Brain Death From Fulminant De-Efferentation, 30 CAN. J. NEUROLOGICAL SCI. 397-404 (2003); M. E. Ostermann et al., Coma Mimicking Brain Death Following Baclofen Overdose, 26 INTENSIVE CARE MED. 1144-46 (2000); F. Vargas et al., Fulminant Guillain-Barre Syndrome Mimicking Cerebral Death: Case Report and Literature Review, 26 INTENSIVE CARE MED. 623-27 (2000).
60. See J. M. Goodman et al., Confirmation of Brain Death With Portable Isotope Angiography: A Review of 204 Consecutive Cases, 16 NEUROSURGERY 492-97 (1985); R. E. Mejia & M. M. Pollack, Variability in Brain Death Determination Practices in Children, 274 JAMA 550-53 (1995); G. A. Van Norman & D. M. Fisher, A Matter of Life and Death: What Every Anesthesiologist Should Know About the Medical, Legal, and Ethical Aspects of Declaring Brain Death, 91 ANESTHESIOLOGY 275-87 (1999).
61. Bernat, supra note 22, at 40; Wijdicks, supra note 57.
62. See L. M. Morgan, Life Begins When They Steal Your Bicycle: Cross-Cultural Practices of Personhood at the Beginnings and Ends of Life, 41 J. L., MED. & ETHICS 8-15 (2006).
63. Khushf, supra note 19, at 70.
64. See M. Giacomini, A Change of Heart and a Change of Mind? Technology and the Redefinition of Death in 1968, 44 SOC. SCI. MED. 1465-82 (1997); Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death, A Definition of Irreversible Coma, 205 JAMA 85-88 (1968). An anonymous reviewer suggested that "the ability to recognize when death has occurred by neurological criteria is a critically important, practical contribution to todays medicine." It is suggested to be practical because it addresses the problems of allocation of scarce medical resources, personal/psychological burdens, and organ transplantation. This is exactly the point: the reason to accept BD as death would be for practical reasons; however, I argue that because BD is actually not death, this utilitarian argument to consider it as death is not sufficient.
65. See J. R. Kim et al., Korean Health Professionals' Attitudes and Knowledge Toward Organ Donation and Transplantation, 41 INT'L. J. NURSING STUD. 299-307 (2005); M. P. Lock, Inventing a New Death and Making It Believable, 9 ANTHROPOLOGY AND MED. 97-115 (2002); T. Tomlinson, Misunderstanding Death on a Respirator, 4 BIOETHICS 253-64 (1990); S. J. Youngner et al., "Brain Death" and Organ Retrieval: A Cross-Sectional Survey of Knowledge and Concepts Among Health Professionals, 261 JAMA 2205-10 (1989).
66. A. R. Joffe & N. Anton, Brain Death: Understanding of the Conceptual Basis by Pediatric Intensivists in Canada, 160 ARCHIVES PEDIATRIC ADOLESCENT MED. 747-52 (2006). Note that a concept offered that is not discussed here is a "prognosis concept." This referred to a statement that cardiac arrest would occur in the near future, or that further care would be futile or degrading. This confuses a prognosis with a diagnosis; a poor quality of life is not the same as being dead.
67. A. R. Joffe et al., Brain Death: Understanding of the Conceptual Basis by Neurosurgeons in Canada, 12 CRITICAL CARE MED. A145 (2006) (supplement).
68. This line of reasoning is taken from the discussion on the twinning argument in favor of embryo research, where it is said that "the argument is not just bad; it is really bad." Khushf, supra note 19, at 66, 67.
69. Bernat, supra note 22, at 41.
70. Id.
71. See D. I. Wikler, Conceptual Issues in the Definition of Death: A Guide for Public Policy, 5 THEORETICAL MED. 167-80 (1984).
72. See discussion in E. T. Bartlett, Differences Between Death and Dying, 21 J. MED. ETHICS 270-76 (1995); J. Menikoff, The Importance of Being Dead: Non-Heart-Beating Organ Donation, 18 ISSUES IN LAW & MED. 3-20 (2002).
73. See C. Pallis & D. H. Harley, Reappraising Death, in ABC OF BRAINSTEM DEATH, 2nd ed. 1-7 (C. Pallis & D. H. Harley, eds., London: BMJ Publishing Group, 1996); C. Pallis, Further Thoughts on Brainstem Death, 23 ANAESTHESIA & INTENSIVE CARE 20-23 (1995).
74. See G. B. Young et al., Brief Review: The Role of Ancillary Tests in the Neurological Determination of Death, 53 CAN. J. ANESTHESIA 620 (2006); Shemie et al., supra note 1, at S9; Shemie, supra note 31, at 747; and S. D. Shemie, Diagnosis of Brain Death in Children, 6 LANCET NEUROLOGY 88 (2007).
75. See Pallis, supra note 73; Pallis & Harley, supra note 73.
76. D. A. Shewmon, Brainstem Death, Brain Death and Death: A Critical Re-evaluation of the Purported Equivalence, 14 ISSUES IN LAW & MED. 125-45 (1998). Bernat points out some of these flaws of the brainstem criterion of death. See supra note 48, at 24.
77. Id.
78. See id; DeGrazia I, supra note 14, at 439; Green & Wikler, supra note 15, at 128.
79. See cases reported by Grigg et al., supra note 37; A. Ferbert et al., Isolated Brain-Stem Death: Case Report With Demonstration of Preserved Visual Evoked Potentials, 65 ELECTROENCEPHALOGRAPHY & CLINICAL NEUROPHYSIOLOGY 157-60 (1986); S. Kaukinen et al., Significance of Electrical Brain Activity in Brain-Stem Death, 21 INTENSIVE CARE MED. 76-78 (1995); J. Ogata et al., Primary Brainstem Death: A Clinico-Pathological Study, 51 J. NEUROLOGY & NEUROSURGICAL PSYCHIATRY 646-50 (1988); E. Rodin et al., Brainstem Death, 16 CLINICAL ELECTROENCEPHALOGRAPHY 63-71 (1985); H. P Schlake et al., Determination of Cerebral Perfusion by Means of Planar Brain Scintigraphy and HMPAO in Brain Death, Persistent Vegetative State and Severe Coma, 18 INTENSIVE CARE MED. 76-81 (1992); M. J. Zwarts, Clinical Brainstem Death With Preserved Electroencephalographic Activity and Visual Evoked Response, 58 ARCHIVES NEUROLOGY 1010 (2001).
80. Grigg et al., supra note 37.
81. Rodin et al., supra note 79, at 70.
82. Id.
83. PRESIDENT'S COMMISSION, supra note 3, at 2.
84. LAW REFORM COMMISSION, supra note 3, at 15.
85. See Bernat, supra note 22, at 40.
86. See Wijdicks, supra note 57.
87. SOCIETY OF CRITICAL CARE MEDICINE, MAKING DECISIONS WHEN YOUR CHILD IS VERY SICK: A GUIDE TO UNDERSTANDING WHAT DIFFICULT DECISIONS NEED TO BE MADE 4 (2004), available at http://www.sccm. org.
88. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, DECISION DONATION: A SCHOOL PROGRAM THAT GIVES THE GIFT OF LIFE 29 (2002), available at http://www.organdonor.gov/student/.
89. Id. at 130.
90. THE TRILLIUM GIFT OF LIFE NETWORK, THE OPTION OF ORGAN AND TISSUE DONATION 12 (2004), available at http://www.giftoflife.on.ca/page.cfm?id=0948060D-B19C-4D76-B365-85EDF1D2262A.
91. THE TRILLIUM GIFT OF LIFE NETWORK, UNDERSTANDING NEUROLOGICAL DEATH 4 (Toronto, Canada: Trillium Gift of Life Network 2004), available at http://www.giftoflife.on.ca/page.cfm?id=0948060D-B19C-4D76-B365-85EDF1D2262A.
92. L. Hawryluck, Discussing Neurological Death and the Option of Donation: Ethical and Legal Considerations, in IAN ANDERSON, CONTINUING EDUCATION PROGRAM IN END OF LIFE CARE: NEUROLOGICAL DEATH, ORGAN AND TISSUE DONATION (University of Toronto, 2007), available at http://www.cme.utoronto.ca/ endoflife/Organ%20donation.htm.
93. S. D. Shemie et al., Organ Donor Management in Canada: Recommendations of the Forum on Medical Management to Optimize Donor Organ Potential, 174 CAN. MED. ASS'N J. S21 (2006).
94. Id. at S16.
95. Id., at S19.
96. M. Z. Solomon et al., New and Lingering Controversies in Pediatric End-of-Life Care, 116 PEDIATRICS 872-83 (2005).
97. Joffe & Anton, supra note 66.
98. See R. M. Arnold & S. J. Youngner, The Dead Donor Rule: Should We Stretch It, Bend It, or Abandon It? 3 KENNEDY INST. ETHICS J. 263-78 (1993).
99. For authors suggesting this line of reasoning, see the discussions in: Halevy &r Brody, supra note 41, at 519-25; Truog & Robinson, supra note 50, at 2391-96; R. M. Veatch, Impending Collapse of the Whole-Brain Definition of Death, HASTINGS CENTER REP., July/Aug. 1993, at 18. Veatch has a somewhat different way of making this argument. He argues that it is the lack of embodied capacity for consciousness, that is, the absence of integration of body and mind (both being absent), that should define death. By this view, death is a moral, not an ontologie or biologic concept. Therefore, organ removal (and other death behaviors) can be justified because the patient is morally defined as dead, not because we morally accept that organ removal is justified from the not yet dead BD patient.
100. See Marquis, supra note 9, at 18-21; B. Steinbock, The Morality of Killing Human Embryos, 34 J. L. MED. & ETHICS at 26-27 (2006), in which the author discusses the "common-sense view" derived from "the Judeo-Christian tradition."
101. See D. Marquis, Why Abortion is Immoral, 86 J. PHIL. 183-202 (1989).
102. For a discussion of this concept, see the following: DeGrazia I, supra note 14, at 426-34; Marquis, supra note 101; Marquis, supra note 9, at 21-24; D. Marquis, Deprivations, Futures, and the Wrongness of Killing, 27 J. MED. ETHICS 363-69 (2001); D. Marquis, A Defence of the Potential Future of Value Theory, 28 J. MED. ETHICS 198-201 (2002); D. Marquis, Savulescu's Objections to the Future of Value Argument, 31 J. MED. ETHICS 119-22 (2005); Steinbock, supra note 100, at 30-32.
103. Marquis, supra note 101, at 189.
104. DeGrazia I, supra note 14, at 424.
105. Veatch, supra note 51; Veatch, supra note 99; R. M. Veatch, Abandon the Dead Donor Rule or Change the Definition of Death? 14 KENNEDY INST. ETHICS J. 261-76 (2004); R.M. Veatch, The Death of Whole-Brain Death: The Plague of the Disaggregators, Somaticists, and Mentalists, 30 J. MED. & PHIL. 353-78 (2005). In these articles Veatch makes his argument for why death should be defined by when it is morally acceptable to treat a patient as if they were dead. The argument goes: "full moral standing - life, in this morally significant sense - is the characteristic of all humans with 'embodied capacity for consciousness.'. . . Embodied consciousness takes a stand about both capacities for both the minimal somatic functions and the minimal mental functions that are necessary for full moral standing to be present. When, and only when, these are jointly present, then the sufficient conditions for full moral standing are present." Veatch, supra, 30 J. MED. & PHIL, at 370. This view would seem to require that mental function is equivalent to the brain (i.e. materialism), that one could bury an awake breathing patient in a permanent vegetative state (despite the aesthetic reactions), and that the "soul or spirit" either is the brain or departs the body once the brain is nonfunctional.
106. As an anonymous reviewer points out, "the potential future of value" may not be what makes killing wrong. 1 think the objection may be due to the possibility that "the potential future of value" is a sufficient reason, but not a necessary reason for why killing is wrong. For example, the reviewer points out a religious reason why killing is wrong: it takes away a human life, which is of infinite value and belongs to its Creator.
107. D. Alan Shewmon, The Dead Donor Rule: Lessons From Linguistics, 14 KENNEDY INST. ETHICS J. 292 (2004). This potential solution is added at the suggestion of an anonymous reviewer. Note that Shewmon and I still believe that "a dead brain per se does not constitute a dead organism" (id. at 292). and that killing the BD donor does harm the donor. This is because he considers this "startling conclusion [that killing the BD patient does not harm the donor] a subjective, first-person-experiential-essentially Cartesian - notion of 'harm,' according to which permanently unconscious patients are by definition beyond 'harm'" (id.).
108. Id. at 293-96.
109. Id. at 296.
110. M. Potts & E. W Evans, Does It Matter That Organ Donors Are Not Dead? Ethical and Policy Implications, 31 J. MED. ETHICS 406, 408 (2005).
111. H.M. Evans, Reply to: Defining Death: When Physicians and Families Differ, 31 J. MED. ETHICS 642, 643 (2005).
112. This question is considered in the following: Marquis, supra note 9, at 23; Potts & Evans, supra note 110, at 406-09; Truog & Robinson, supra note 51, at 2391-96.